Mother and father opposed DHS's
motion to dismiss, contending that "the jurisdictional finding of the
Court remains a matter of record."� They argued, among other things, that
father has suffered and will continue to suffer adverse employment consequences
as a result of the finding of jurisdiction; that mother and father would be
restricted in their involvement in child's life as far as activities at school,
such as accompanying child on field trips; and that the jurisdictional finding
and underlying DHS administrative findings would be used against them if there
were any need in the future for DHS to intervene.

The Appellate Commissioner denied
DHS's motion to dismiss on the ground that mother and father "have shown
that there are collateral consequences to the trial court's determination that
the petition invoking the juvenile court's jurisdiction was well-taken."�
DHS sought reconsideration of the Appellate Commissioner's order, and, on
reconsideration, the Chief Judge adhered to the Appellate Commissioner's
order:�

"Upon review, it is clear the original
order was correct.� [Mother and father] have demonstrated collateral
consequences to the juvenile court's judgment that are significant in number
and scope.� In light of those consequences, a decision from this court will
continue to have a practical effect and, for that reason, the case is not
moot."

In response to mother's and father's
opening briefs, DHS renewed its arguments regarding mootness, and, following
oral argument, this court allowed mother and father to supplement the record
with further evidence and argument as to why this case still presents a live
controversy.� For the reasons that follow, we agree with the previous orders in
this case determining that the case is not moot.

In an affidavit submitted to this
court, father avers that he has suffered adverse employment consequences as a
result of the judgment taking jurisdiction over child.� Father is a project
manager who works with corporations that contract with the federal government.�
Those contracts, father states, require him to obtain high level security
clearances.� Before the juvenile court took jurisdiction in this case, father
had never failed a security clearance.� However, father has since failed a
security clearance for a corporation for whom he has worked on previous
occasions.� According to father, the juvenile court's assertion of jurisdiction
is the "only incident or involvement in which I have been entangled that
could conceivably or possibly have any impact on my denial of security
clearance"; father contacted someone "affiliated with" that
corporation and was informed that "child abusers don't receive the highest
level of security clearances."�� Father's affidavit, though not as
detailed as it could be, nevertheless gives rise to reasonable inferences that
the juvenile court's initial judgment has had--and will continue to
have--collateral effects on father's employment prospects.

What is equally--perhaps,
more--significant is the effect that the juvenile court's judgment continues to
have with respect to any future investigation of child's circumstances or those
of mother or father.� In the event that DHS were to receive a report of child
abuse, the department would be required by statute to "[c]ause an
investigation to be made to determine the nature and cause of the abuse of the
child[.]"� ORS 419B.020(1)(a).� In conducting that investigation, Child
Protective Services (CPS) reviews "historical information on the family
and the child that may be useful in completing the CPS assessment."� OAR
413-015-0415(1)(a)(B).� That includes a review of any "[h]istory or a
pattern of abuse or neglect," OAR 413-015-0415(1)(b)(B), which would include
any previous "founded" abuse disposition.

Father and mother contend that,
unless this court reverses the juvenile court's order asserting jurisdiction in
this case, they have no way of challenging the underlying administrative
findings by DHS.� That appears to be the case.� Under DHS's own rules, the
agency will not review a "CPS founded disposition" if the juvenile
court's findings are consistent with the founded disposition.� See, e.g.,
OAR 413-010-0723 ("If a requestor inquires about a review of a CPS founded
disposition and there is a legal finding consistent with the CPS founded
disposition, the local Child Welfare office staff must prepare and deliver a
'Notice of Legal Finding' (Form CF 318) that informs the requestor that the
Department will not review the disposition.").� Here, the juvenile court
found that child sustained serious, unexplained injuries and that child was
endangered by conditions and circumstances in the parents' home.� Although the
juvenile court later dismissed jurisdiction on the ground that the conditions
and circumstances no longer endangered child, the court did not disturb
the findings in its previous judgment asserting jurisdiction.� Thus, the
juvenile court's judgment asserting jurisdiction, as well as any concomitant
DHS findings regarding abuse or neglect, negatively affect father's and
mother's record with the department.

Finally, mother and father contend
that they have suffered and will suffer a social stigma associated with having
their child removed from their care based on allegations of abuse or neglect.� Cf.
State v. Linde, 179 Or App 553, 556, 41 P3d 440 (2002) (holding that an
appeal of an order committing an accused mentally ill person is not moot after
the period of confinement, because of the "undeniable" stigma
associated with mental commitment).� Although that stigma alone might not
create a justiciable case in every circumstance (particularly in light of the
confidentiality of DHS and juvenile court records), we nonetheless agree with
mother and father that, when coupled with the derogatory "abuse
history" with the department and the likelihood that the juvenile court's
order will continue to affect father's future security clearances and
employment opportunities, the order asserting jurisdiction continues to have
sufficient collateral, practical effects that make this a live controversy.�
For that reason, we reject DHS's renewed arguments that this case is moot.

Child was born on September 2, 2007.�
Although child was a colicky newborn, her physician noted nothing out of the
ordinary during her two-month pediatric appointment.� Child's colic seemed to
be improving after her appointment on November 2, 2007, when she was prescribed
new medicine, and child generally cried less between November 2 and November
7.� However, on November 7, 2007, the parents noticed that child was moving
differently in her crib; she was also fussy that night, crying from midnight to
4:00 a.m.� Four days later, on November 11, mother and father called child's
doctor because child had "started radically sobbing early that morning,
around 10:00."� The on-call pediatrician, Dr. Crowley, instructed the
parents to take child to the hospital emergency room to determine whether she
was suffering from a bowel obstruction.

By the time the family reached the
hospital, Dr. Crowley had spoken to Dr. Hull, an emergency room pediatrician,
and reported child's symptoms.� Two nurses observed child while father was
holding her, and Dr. Yarris, a resident who was working with Dr. Hull, was the
first physician to examine her.� When Dr. Yarris laid child on her back, she
began crying; Dr. Yarris then conducted a full-body examination and presented
the case to Dr. Hull.� Dr. Hull noted that child was not moving her right leg
as much as her left.

After a full examination of child,
Dr. Hull believed that child was injured at her right femur (thigh bone) at the
knee, and he ordered an x-ray of child's pelvis and right leg.� The x-ray of
the right leg showed a femur fracture, sometimes called a "bucket handle
fracture."� Fractures of that kind are caused by rotational or sideways
force across the ligaments that stabilize the knee.� In infants and young
children, the ligaments are stronger than the bone, so that when force is
applied to the ligament, the ligament can pull off a chip of the bone.� If the
force is sufficiently strong or sustained, the pressure will continue across
the femur and result in a "bucket handle fracture" like that suffered
by child.

After Dr. Hull initially diagnosed
the fracture, he asked child's parents for an explanation regarding possible
causes of the fracture, asking questions like, "Is there any history of
any kind of injury to the baby's leg."� Mother and father said that there
was no such history.� After the x-ray confirmed his initial diagnosis, Dr. Hull
again approached parents about the injury.� Both parents told Dr. Hull that there
was no possibility of nonaccidental or accidental trauma, that they did not use
a babysitter, and that child was never left alone.� Dr. Hull tried to "jog
their memory" with questions about a history of falls, child getting her
leg caught in the crib, or child rolling off a changing table and someone
grabbing her.� Parents responded "no" to each of the scenarios
presented by Dr. Hull.� Parents did, however, offer the observation that child
had been "scooting more around the crib" in something of a circle,
which caused Dr. Hull to question the duration of the injury.� Father,
meanwhile, insisted that the doctors were missing the more important issue of
abdominal pain by focusing only on "an obvious thing like the
femur[.]"� Dr. Hull told father that the broken bone was a significant and
extremely painful injury and was probably the reason that child did not want to
be on her back.

Child's leg was placed in a splint,
and child was transported by ambulance to another hospital for treatment and
evaluation.� During child's stay at that hospital, doctors, social workers, and
law enforcement officials repeatedly questioned parents about possible
explanations for the fracture.� Detectives asked mother several times if child
"had been dropped or fallen or rolled off of furniture or anything at all
along those lines," and mother replied that it "just * * * wasn't
possible." Father was asked similar questions by Anderson, a detective
assigned to the Child Abuse Team in the Washington County Sheriff's Office.�
Father told Anderson that "nothing like that had ever happened."�
According to Anderson, father was "more upset that his daughter might have
an undiagnosed condition"; father told the detective that child's leg
"wasn't really a big issue."� Father also told one of child's treating
physicians, Dr. Barmada, that father did not know how the injury could have
occurred, and father told Rogers, a social worker, that father had been
"wracking my brain" but could not come up with any possible
explanation for the injury.

Given the lack of any explanation for
the serious injury, DHS decided to place child in protective custody, and
mother and father were informed of that decision in a meeting at the hospital.�
During that meeting, mother turned to father and asked, "What about that
time she started to fall," and asked father whether mother had grabbed
child by the leg on that occasion.� According to detective Anderson, father
"immediately said no, dismissed it, and that was pretty much the end of
that."

The following day, the
juvenile court held a shelter hearing.� At that hearing, mother for the first
time provided a detailed explanation of the injury.� Mother testified that she
was sitting in a recliner at child's feeding time, and child was sitting in her
lap.� Mother testified that she took a moment to reply to an e-mail on her
nearby laptop and felt child begin to fall; as child was falling, mother
grabbed child's right leg with her left hand and grabbed child's waist with her
right hand.� According to mother, the fall had happened a few days before they
had gone to the hospital, and child did not cry or give any indication that she
was injured at that time.

Mother further testified that she
had, in fact, mentioned the fall and right leg grab previously to Dr. Hull.�
According to mother, immediately after Dr. Hull asked her about child's injury,
the "first thing" that she said to him was that child had fallen out
of a chair and that she had grabbed child's leg.� Mother testified that Dr.
Hull quickly dismissed that explanation and did not ask for any details.�
Mother also testified that, during the previous night's meeting with the social
worker and the detectives at the hospital, mother had started to offer that
explanation but the social worker had cut her off.

At the jurisdictional hearing, mother
again gave the same explanation for child's injury--that she grabbed child's
right leg as child was falling from her lap--and testified that she had not
offered the explanation earlier because of the dismissive response from Dr.
Hull.� Although various doctors testified that mother's explanation could
possibly explain the injury, Dr. Hull testified that he did not recall mother
ever mentioning the fall to him, despite the fact that he had repeatedly
pressed both parents for an explanation.� Similarly, Anderson, who had followed
up with Dr. Hull after the shelter hearing, testified that Dr. Hull flatly
denied that mother had ever offered him that explanation.

Mother also again testified that
Rogers, the social worker, had dismissed her explanation during their hospital
meeting.� However, both Rogers and detective Anderson, who was also at the
meeting, testified that mother had simply asked father whether she had grabbed
child by the leg, and father--not Rogers--said, "No, that's not
it."

At the close of the jurisdictional
hearing, the juvenile court asserted jurisdiction over child.� The court relied
heavily on Dr. Hull's testimony:

"Dr. Hull's testimony, in my opinion, was
perhaps the most important because two things I infer from that particular
visit with Dr. Hull.

"Firstly, I do find from Dr. Hull's
testimony that he would have been particularly insistent with both mom and dad
to understand the nature of the injury, and that's because Dr. Hull knew, as
the parents later learned, that a referral to [the second hospital] really
changed in a significant way the nature, degree of hospital and State
involvement, and it's that critical juncture in which I really have no doubt in
concluding that Dr. Hull was particularly insistent with mom and dad to be as
explanatory as possible about providing him with any explanation about how the
injury could have been suffered by [child].

"* * * * *

"From there, Dr. Hull testified that of
course he was unable to determine what the particular cause of the injury would
be.� It could be, as we know, a rotational or sideways injury to the leg, but
we do know that it could not have been caused by any reasonable caretaking.� It
could not have been caused by normal moving from the crib to a stroller or a
car seat, or caused by normal childcare activities.� As that goes, it's
important because we can only conclude, based on Dr. Hull and Dr. Skinner and
Dr. Brady's testimony, that the injury must have been caused by some great
force."

The court rejected mother and father's argument that it must
find that the injury was nonaccidental or accompanied by other similarly
unexplained injuries.� Instead, the court focused on the totality of the
circumstances surrounding the injury and explanation:

"I believe that's beside the point, in that an unexplained
injury of significance, which results in a child's expression of pain, is such
that the child is unable to obtain prompt, efficient medical treatment, is such
that Juvenile Court jurisdiction must attach, such a significant injury that a
parent or guardian's failure to recognize the injury, failure to address the
injury could reasonably be an expectation of harm to the child.

"* * * * *

"* * * [u]nder these facts I think it
reasonable to conclude, and the evidence certainly supports the inference that
the injury occurred on Wednesday.� That leads me to the conclusion that
Thursday, Friday, Saturday, during normal childcare, the injury was not
appropriately attended to.

"* * * * *

"* * * [T]he Court finds that jurisdiction
was proven by the State by a preponderance of the evidence, that [child]
suffered an unexplained injury that was significant and serious, that there was
an insufficient explanation given, and that insufficient explanation requires
the intervention and wardship of the Washington County Juvenile Court to
supervise for her care, placement, and supervision."

The court then entered a judgment finding child within the
jurisdiction of the juvenile court, which mother and father appeal.

On appeal, mother argues that the
juvenile court erred in asserting jurisdiction over an unexplained injury
because child was not, in fact, subjected to such an injury.� According to
mother, a preponderance of the evidence establishes that child suffered an
explained, accidental injury, and that there is no variance between the injury
and the explanation that mother offered.� Father similarly argues that the
injury was adequately explained.� He also argues that, in any event, an
"unexplained physical injury" is not sufficient to justify an
assertion of juvenile court jurisdiction under ORS 419B.100 unless a
preponderance of the evidence establishes that the injury was caused by abuse
or was non-accidental.

We begin with mother's and father's
contentions that, contrary to the trial court's findings, child's injury was
adequately explained.� According to mother and father, mother's version of
events regarding child's fall from her lap is consistent with the type of
injury that child suffered, according to all the medical evidence in the
record.� The problem with mother's and father's arguments, however, is that
they would require us to ignore the juvenile court's implicit credibility
findings in this case.� As discussed above, this court gives "considerable
weight" to the juvenile court's findings on credibility, in light of that
court's ability to observe the witnesses and their demeanor. �Geist, 310
Or at 194.� And here, after hearing and observing each of the witnesses and
considering their sometimes conflicting testimony, the juvenile court
implicitly found that mother's explanation of the injury lacked credibility.

On appeal, we will not disturb that implicit
credibility finding, particularly in light of certain substantive parts of
mother's testimony.� We find it somewhat implausible, on this record, that Dr.
Hull would have dismissed, without any discussion, mother's explanation that
child fell and was grabbed by the right leg.� By all accounts, Dr. Hull made
repeated efforts to discover any possible cause of the injury.� Moreover, given
the severity of child's injury, the stakes of the investigation, and the
repeated inquiries for any possible explanation, the lateness of mother's
explanation raises serious questions regarding its accuracy, and we are not
prepared to overturn the juvenile court's factual determinations in that
regard.

"The key inquiry in determining whether
'condition or circumstances' warrant jurisdiction is whether, under the
totality of the circumstances, there is a reasonable likelihood of harm to the
welfare of the child.� It is the child's condition or circumstances that
are the focus of the jurisdictional inquiry.� In deciding if the juvenile court
has jurisdiction, the court must determine if the child needs the court's protection,
not the nature or extent of the necessary protection."�